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Wrinkles that must be addressed

One of the frightening parts of the Tsilhqot'in decision, the Supreme Court of Canada's epic ruling on aboriginal title, is the relatively modest and straightforward nature of the parcel of land the court considered.

One of the frightening parts of the Tsilhqot'in decision, the Supreme Court of Canada's epic ruling on aboriginal title, is the relatively modest and straightforward nature of the parcel of land the court considered.

In her decision that recognized the claim of the interior B.C. First Nation, Chief Justice Beverley McLachlin said the portion of B.C. at issue is about five per cent of what the Tsilhqot'in regard as their traditional territory or about 1,700 square kilometres, according to the CBC; it's also sparsely populated, with about 200 Tsilhlqot'in living there. And perhaps more importantly, while the federal and provincial governments fought for years in court to oppose the claim, McLachlin noted there were "no adverse claims from other indigenous groups."

That's not true for many of the First Nations in B.C., who must deal with the fraught issue of overlapping claims with other aboriginal groups. According to Sophie Pierre, chief commissioner of the B.C. Treaty Commission, about 110 per cent of the province is the subject of aboriginal land claims; those places where two or more First Nations assert title over the same territory present one more wrinkle that must be addressed in post-Tsihlqot'in B.C.

It's a daunting problem. "The impact of overlapping claims should not be underestimated -- the spectre of endless conflict among Aboriginal groups, including litigation, may influence final investment decisions," wrote the federal Conservatives special representative Douglas Eyford in a 2013 report. No firm is going to pour billions of dollars into a mine or a pipeline or an LNG plant if there's the prospect five or ten years later that a judge is going to alter who makes decisions on the land they are based on.

Overlapping claims will also affect how First Nations assert aboriginal title and, ultimately, how they come to terms with the federal and provincial government. Pierre, in a recently released report by the commission on the issue, asserts the top court decision "made it clear that in order for First Nations to have clear title, any overlapping claims have to be dealt with."

The stakes for a First Nation could not be higher - title, potential benefits from major development, progress at the treaty table. And claims themselves could not be more difficult to delineate with modern legal means; as McLachlin writes in Tsihlqot'in "How should the courts determine whether a semi-nomadic indigenous group has title to lands?" How then will the courts untangle and translate traditional agreements betweeen First Nations, between bands, between families - many times unwritten, many times passed down through generations and kept by elders - into the black-letter laws of deeds, fences and boundaries?

It is hard to see how, especially with bitter disputes that may extend back centuries, overlapping claims will not end up before the courts. That means more lawyers, more millions, more time, more uncertainty for everybody involved.

To make matters worse, the existing process to settle overlapping claims seems to have stalled. As veteran mediator Vince Ready lamented in the report: "Parties sitting around the table for many years, they become very entrenched in their positions... There is frustration built into the process."

Pierre told the Canadian Press lack of funding is one problem; Judith Sayers, a chief negotiator with the Hupacasath First Nation, adds the push by governments to get treaties sometimes causes overlaps to be ignored.

There's another way. The commission's report takes its title from Recommendation 8 of a 1991 report by the British Columbia Claims Task Force: "First Nations resolve issues related to overlapping traditional territories among themselves." In this case the old ways are the best: quicker, cheaper, more satisfying, without the winners and losers of the court process. And there is work afoot developing such a process that allows that kind of dialogue, through the First Nations Summit; the commission's report also outlines similiar solutions, whether through the commission itself or a panel of aboriginal representatives.

And, as Dan George points out in the report, Tsihlqot'in and the spotlight on B.C. resource development may have created 'conflict ripeness... where the parties are sufficiently uncomfortable that they are motivated to seek agreement and move away from entrenched positions." The report cites the Kitselas and Metlakatla Treaty Settlement Lands Agreement, where two First Nations ironed out some of their differences regarding lands around Prince Rupert and Terrace, hotbeds of LNG activity.

Ultimately, the onus will be on First Nations to remedy this situation - especially considering one possible solution may turn out to be interferance from the federal government. Eyford wrote: "Canada may be compelled to intervene by undertaking strength of claim assessments to identify the scope and depth of consultation and potentially advise on the apportionment of benefits"; that's potentially backed by Tsihlqot'in, in which McLachlin writes, on instances where aboriginal title can be infringed by government: "the broader public goal... must further the goal of reconciliation." Overlapping claims may fit that bill.

That would be an unfortunate consequence of Tsihlqot'in: if rancour between First Nations became the vehicle through which government could decide aboriginal title.